New Haven Register (New Haven, CT)
Harbor management commissions worry their authority is in hot water
Officials with a state association tasked with representing Connecticut municipalities on the shoreline say they fear a recent court decision may have led to the diminished authority of local harbor management commissions.
The questions arose after Superior Court Judge Thomas Moukawsher this year rejected a state resident’s appeal of her neighbors’ application to build a dock on water abutting their property. Moukawsher said in his decision that state Department of Energy and Environmental Protection officials acted within their rights to permit construction of the dock, despite concerns raised by a local Harbor Management Commission.
“The question presented by the harbor management claim is whether (The Harbor Management Act) grants harbor management commissions the power to make binding recommendations to the DEEP commissioner on permits affecting harbors. This question may be answered briefly: it does not,” Moukawsher wrote in his decision.
Further, Moukawsher said the act did not grant a Harbor Management Commission “veto authority” over a state permit.
The decision has caused concern with leaders of the Connecticut Harbor Management Association, who said it reduced harbor management commissions’ authority to review state applications.
“No one has ever suggested, as the Judge implies, that a harbor management commission would have ‘veto’ power over a DEEP decision,” said CHMA President
John Pinto in a letter to harbor management commission leaders. “If left to stand, these decisions would negate municipal harbor management authority in a most significant way.”
CHMA leaders are looking to gather support from local commissions to speak with state representatives on the potential challenges to local control.
Geoffrey Steadman, a CHMA board member and consultant for various harbor management associations in the state, said each harbor management commission develops a plan, which is approved by DEEP.
“It doesn’t make sense to conclude that a harbor management commission doesn’t have authority to make recommendations concerning DEEP permits; DEEP’s existing permit process, in fact, requires applicants to submit their plans to the affected harbor management commission for the commission’s recommendations to DEEP,” he said.
Pinto said harbor management plans “include the provision that a recommendation of the harbor management commission pursuant to the plan and adequately supported by the plan is binding on DEEP decisions unless DEEP shows cause otherwise.”
“As a result, it has been understood for some time that a commission’s recommendations have significant weight but at the same time DEEP can still act contrary to a commission’s recommendations but must explain itself if it does,” he said.
But DEEP officials said they believe Moukawsher’s decision accurately reflects their authority and the relationship the department has with local harbor management associations.
“Under the Harbor Management Act, municipalities can develop harbor management plans, and there is a process where DEEP approves them and they can approve various recommendations and policies. Harbor management commissions are responsible for the implementation of the plan,” said Brian Thompson, director of DEEP’s land and water resources division. “When DEEP reviews a permit application we have to consider the harbor management plans in our review.”
Thompson said DEEP reviews local harbor management commissions’ comments and recommendations on individual applications and implements them “where we believe they’re appropriate.”
“This decision doesn’t change anything for us,” Thompson said.
David Blatt, supervising environmental analyst for DEEP, said the department “(values) harbor management commissions as partners” and continues to consider their recommendations. .
“I think certain people in the harbor management association are maybe overreacting a little,” Blatt said. “The statute talks about recommendations in the plan, and the judge tried to point out that’s different from a recommendation on an individual permit. A recommendation on an individual permit is not necessarily binding on us, but the policies in the plan are.”
Blatt said that, for instance, if a locally-adopted harbor management plan were to forbid the construction of a dock in a shellfish area, DEEP would be unable to issue a permit for a dock in a shellfish area. But Thompson said if a harbor management commission were to raise concerns about proposed lights on a dock application creating a quality of life concern, “we wouldn’t need to follow that recommendation.”
The DEEP interpretation of the law has some support among shoreline municipal officials.
“I don’t see the decision as impacting the authority of the Clinton Harbor Commission. It has been my understanding the experience that DEEP has the authority to permit docks,” said Clinton Town Manager Karl Kilduff.